FMLA, ADA, USERRA, Workers Compensation and HIPAA: Navigating the Bermuda Triangle of Medical Leave

Years ago, most workers' compensation professionals understood completely all of the legal risks. Follow the schedule listed in the statute, check compliance with other rules, and you knew the approximate costs of the claim. With the passage of the ADAAA, FMLA, GINA, such claims are not as easy to administer. Even the Pregnancy Discrimination Act has become a claim that many employers rarely see (because you treat pregnancy as any other "temporary disability"). How can you comply with each and every one of these statutes when they all have different purposes and different rules? Don't get caught like other employers recently have, because you haven't kept up with the latest regulations and court decisions.

• The differences between the ADAAA and FMLA when it comes to leaves of absences
• Do workers compensation statutes require an employer to offer "light duty" positions? 
• What are the pros/cons of light duty positions? 
• Even if your state statute doesn't require light duty positions, will the ADAAA require it? 
• Can you terminate an employee out on workers' compensation leave for refusing a light duty position? 
• How to run the various leave requirements concurrently? 
• Can you run workers' compensation payments concurrently with other paid leave such as sick leave, vacation, short term disability, etc. Can the employee request that you do so even if you don't require it? 
• How is GINA different from the ADAAA? How is it similar? 
• How to treat pregnancies under the ADAAA, FMLA and PDA (and, yes, it is very different under each statute) 
• When are you required to provide COBRA notices to those out on leave? 

• What employers are covered by the Family and Medical Leave Act
• What employees are eligible for FMLA leave
• What are qualifying events under the FMLA
• What happens when an employee exhausts their FMLA
• When a leave of absence is an accommodation under the ADA
• What is a request for an “indefinite leave” 
• The interaction between the FMLA, ADA and workers’ compensation laws
• When you can terminate for excessive absenteeism
• Protections for employees serving our military
• Getting the information you need without violating HIPAA

The ADAAA relaxed the standards of who is qualified as "disabled" under the ADA. This relaxation has required employers to offer such things as light duty positions when the employer would not have been required to do before the amendments. The ADAAA also addresses when pregnancy complications may be considered disabilities. Of course, the FMLA/ADAAA has always interacted but with the relaxation of the qualification standards, they interact even more. Congress has also passed the Genetic Information Non-Discrimination Act - why is this different from the ADAAA or is it? When does the FMLA or ADAAA restrict your ability to terminate someone out on workers' compensation leave? Yes, the alphabet soup continues to get trickier especially as we are now seeing court decisions addressing these thorny issues.

• Business Directors
• HR Managers & Directors
• Senior HR Professionals
• HR Analysts
• Employee Relations Professionals
• Employment Managers/Specialists
• Compliance Officers
• Benefits Specialists

Susan Fahey Desmond is a partner with McGlinchey Stafford, PLLC which has offices in 33 states across the country. She has been representing management in all areas of labor and employment law for over 35 years. A noted author and speaker, Susan is listed in Best Lawyers in America and has been named by Chambers USA as one of America’s leading business lawyers